A -v- MJELRHigh Court Judgment was given by Ms Justice Maureen Clark on October 10th, 2009. JUDGMENTThe Minister for Justice had erred in law and applied an incorrect test in not considering new information concerning the HIV status of an applicant for refugee status.
BACKGROUND
The case concerned a Nigerian man, born in 1971, who had applied for asylum in 2004 on two grounds. He claimed fear of persecution on the grounds that he had refused to become high priest of the shrine in his village, and because his homosexuality was uncovered when he was raped during a robbery in 2003.
His application was turned down by the Office of the Refugee Applications Commissioner and he appealed unsuccessfully to the Refugee Appeals Tribunal. An order was made for his deportation.
His solicitors made representations to the Minister as to why he should not be deported. Among them were that he had been diagnosed as HIV positive in December 2004, just days before his interview with Office of the Refugee Applications Commissioner. He claimed that he had provided the appeals tribunal with a letter to this effect from Beaumont Hospital in March 2005, but this was disputed by the tribunal.
The Minister's agents examined his file and decided that the humanitarian grounds were not such as to conclude he should not be returned to Nigeria.
His solicitors sought to make a fresh asylum application on the grounds that his HIV status and his fear of persecution as a member of a social group, that of HIV sufferers, were new information that meant he should not be returned under the principle of non-refoulement.
People with this disease were subjected in Nigeria to stigma, discrimination and harassment and were discriminated against in not being provided with essential life- prolonging healthcare and treatment. Country of origin information was provided to support this contention.
The Minister refused to readmit the application on the grounds that the new documentation and information could have been supplied at the initial application, pointing out that he had received his diagnosis in December 2004 but had not submitted it until he applied for leave to remain in October 2005.
Legal submissions were made arguing that the test that should have been applied was whether the new claim was sufficiently different from the old claim to admit of a realistic prospect that a favourable view could be taken of the new claim.
Counsel for the Minister argued that the Minister was entitled to refuse his consent once he concluded the applicant could reasonably have been expected to have included the new material with the initial application.
DECISION
Ms Justice Clark said the Minister was obliged to make his decision in accordance with natural and constitutional justice and in accordance with the Geneva Convention, including its prohibition against refoulement if the life or freedom of a person would be threatened on various grounds, including membership of a social group.
She did not consider it sufficient for the Minister to consider only the applicant's failure to assert his fear of persecution on the grounds of his HIV status during his first application.
Counsel for the applicant was correct in part in arguing that the Minister was obliged to apply the test elaborated in the English Onibiyo case, where the Court of Appeal elaborated the necessary standard for new evidence in arguing against refoulement.
Section 17 (7) of the 1996 Refugee Act provided for the Minister to consider a fresh application for refugee status where there was new evidence. It had to be construed in accordance with the Geneva Convention and its prohibition on refoulement.
It was important that this section of the 1996 Act was not abused for spurious reasons in order to unjustifiably prolong a stay in the State. It was also important that evidence was presented at the first instance.
However, the Minister must approach his assessment of any application under section 17 (7) of the Act a little more widely than he did in this case. He should not have refused his consent without a consideration that the applicant might face a threat to his life and freedom for a convention reason on return to his country of origin. The Minister should have examined the applicant's claim that he could face persecution because of his HIV status.
In doing so the Minister could have had regard to the fact that the applicant did not assert a fear of persecution on this ground until March 2008, three years and four months after his diagnosis.
He could have regard to the fact that the applicant had not required any special medical treatment so far and to the jurisprudence of the ECtHR that deportation was not precluded simply because the person was receiving medical treatment not available in their country of origin.
Nonetheless, the court was satisfied that the Minister erred in law and applied an incorrect test as to the matters requiring consideration where an applicant seeks consent to make a further application for refugee status.
Accordingly Ms Justice Clark quashed the Minister's decision and ordered the matter to be readmitted for fresh consideration.
The full judgment is on www.courts.ie
...
Saul Woolfson BL, instructed by Conor Ó Briain, North King Street, Dublin, for the applicant; Ann Harnett O'Connor BL, instructed by the Chief State Solicitor, for the Minister.